Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002967
HU/00635/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th March 2026

Before

DUT JUDGE FARRELLY

Between

Mr SU
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Rashid Ahmed, of Osmans Solicitors
For the Respondent: Mr Stephen Walker, Senior HOPO

Heard at Field House on 18 December 2025

DECISION AND REASONS
Introduction
1. The appellant is a national of Bangladesh ,born in 1979. He entered the United Kingdom on a work permit which expired in February 2005. He then overstayed. He was encountered by immigration officials in 2008 when the respondent said he was working. He allegedly gave a false name and when released, absconded. Eventually he was returned at public expense on the 16th of July 2012.
2. He remains in his home country where he has remaining family. Previous applications for entry clearance had been refused and appeals in 2015 and 2018 were dismissed. The genuineness of his marriage was questioned . On the 24th of January 2024 he applied for entry clearance on the basis of his human rights. A distinguishing feature from the earlier applications was the birth of his child to the sponsor. The latest application was now grounded on his marriage to a British national and their four children. His wife, born in 1977, is originally from Bangladesh and she and the children are living in the United Kingdom. I will refer to her hereinafter as his sponsor They were married in Bangladesh in 2012.Three of her children are from a former marriage and, save for the eldest, they remain with her.
3. Following her marriage to the appellant in Bangladesh she became pregnant. She gave birth to her daughter by the appellant after she returned to the United Kingdom on the 29th of October 2019. All are living with the sponsor in the United Kingdom.
4. His application was refused on 20th of March 2024 with reference to paragraph 9.8.2 of part 9 of the rules and on the suitability grounds in S-EC.1.5 of appendix FM. The respondent accepted he met all of the eligibility requirements. No exceptional circumstances were identified and reference was made to the best interests of the children as a primary consideration.
5. He appealed to the First-tier Tribunal. Proceedings have been anonymised. I am not clear why this done given the preference for open justice and the identities of the children were not necessary for the Determination. However, there has been no application by either party to remove the anonymity and given the stage the proceedings are at I would maintain it .
6. His appeal was heard at Newport before First tier Judge Lester on the 29th of August 2024. He did not take part directly but was represented. His appeal was dismissed. The respondent relied upon 9.8.2 (a) and (c) of part 9 of the immigration rules. It was accepted on behalf of the appellant that 9.8.2.(a) applied in respect of his conduct whilst in Bangladesh. Paragraph 9.8.2(c) was a live issue. First tier Judge Lester found this was also engaged on the basis he had used a false name when speaking to immigration officers.
7. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge McWilliam on the basis it was arguable the judge did not apply the correct burden of proof and that the other grounds raised were also arguable (see JC (Part9 HC 35 burden of proof) China [2007] UKAIT 0027). An example given of the respondent’s failure on the proofs related to the lack of evidence to support the allegation he used a false name as an aggravating factor.
8. Before me Mr. Walker did not seek to argue that permission should not have been granted. Paragraph 35 of the Determination of First tier Tribunal Judge Lester records ‘… I remind myself put the burden is upon the appellant and that it is the balance of probabilities.’ This statement is however incorrect in law. I cannot see anything in the determination which will explain this as a simple slip. It is a fundamental error and undermines the entire decision. Consequently, the decision cannot stand and I set it aside.
9. It is expected that the Upper Tribunal will then go on to remake the decision and the representatives have not sought to argue to the contrary.
10. Having regard to the established key facts the appeal should be allowed. He meets the rules and to refuse is a disproportionate interference of the article 8 family life of the family I accept the existence of a genuine and subsisting relationship between the sponsor and his daughter. His daughter has only been able to see him on one occasion when she travelled with her mother to Bangladesh. He has been prevented from visiting her in the United Kingdom. I accept the evidence that they have maintained contact and that it is clearly in her best interest to be with her father and to know her stepsisters. His sponsor meets the required financial threshold and the appellant has completed the English language requirement.
11. Post hearing the appellant’s representatives submitted medical evidence to show that the apparent has suffered a myocardial infarct. In reaching my decision I have not taken this into account. This is because I would have allowed the appeal in its absence and the respondent has not had an opportunity to comment on it and to re list would only further delay matters.

Notice of Decision
The decision of the First-tier Tribunal did involve the making of a material error of law. I set that decision aside and remake it by allowing the appeal.

Francis J Farrelly.

DUT Judge of the Upper Tribunal
Immigration and Asylum Chamber